NF v First-tier Tribunal and CICA [2012] UKUT 287 (AAC)

UKUT-AAC

NF v First-tier Tribunal and CICA

[2012] UKUT 287 (AAC) · 2012-07-31

1. This renewed application for permission to bring proceedings for judicial review of the decision of the First-tier Tribunal dated 13 October 2010, is adjourned.

2. Subject to further directions in the meantime, as soon as is practicable after 1 October 2012 steps are to be taken to fix a further hearing for the final disposal of, or further directions in, this application before one of the judges who made this decision. The time estimate for that hearing is one hour and it should be fixed as soon as is practicable after 1 October 2012.

3. The parties have permission to apply on paper for(i) a variation of the date referred to in paragraph 2,

(ii) an order finally disposing of these proceedings if the applicant has brought proceedings in the Court of Session challenging the decision of the First-tier Tribunal dated 13 October 2010, and

(iii) generally for further directions. Any such application should be directed to Judge Levenson who will liaise as appropriate with Mr Justice Charles and Lord Brailsford .

REASONS FOR DECISION

Introduction

1. This is an application to the Upper Tribunal (UT) for judicial review of a decision of the Social Entitlement Chamber of the First-tier Tribunal (FtT) on an appeal to it from a decision concerning the exercise of a right conferred by the Criminal Injuries Compensation Scheme (CICS) in compliance with s. 5(1)(a) of the Criminal Injuries Compensation Act 1994. It was heard by a three judge panel together with another application for judicial review of a decision of the FtT (JR/0931/2011) relating to the CICS, because the two cases give rise to jurisdictional issues.

2. The jurisdictional issues were identified by

Judge Wikeley when giving permission and directions, as follows:

“Whether proceedings for judicial review of the decisions of the FtT may be brought in England and Wales (and in particular before the UT pursuant to s. 18 of the 2007 Act), or in Scotland or in both jurisdictions?”.

We heard no argument relating specifically to Northern Ireland.

3. In both cases, FRU and Counsel acted for the Applicants pro bono. They should be grateful for the assistance so provided to them, and we repeat our gratitude for the written and oral submissions made on their behalf. At the request of the UT, the Criminal Injuries Compensation Authority (CICA) also provided written and oral submissions on the jurisdictional issues that were helpful. The respondent tribunal played no part in the case before the Upper Tribunal.

4. The jurisdictional issues turn on the application and thus the construction of ss. 15 to 21 of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act), which must be applied in their context. Dependent on those answers, questions arise concerning which court or tribunal should exercise jurisdiction. As to that second question, but by different routes, the parties reached common ground, namely:

(a) in this case, that the review jurisdiction should be exercised by the Court of Session, and in it the CICA argued that the UT did not have jurisdiction and the Applicant argued that the UT and the Court of Session had jurisdiction and the route to that result was based on forum non conveniens grounds, and

(b) in the other case, the common ground was that the UT had, and should exercise, its jurisdiction under ss. 15 and 18 of the 2007 Act, and in that case both sides argued (for different reasons) that both the UT and the Court of Session had jurisdiction and that the UT should continue to deal with the judicial review on forum non conveniens grounds.

We agree with that common ground and as a result announced our decisions at the end of the hearing.

5. However, the jurisdictional issues, and in particular the issue as to the extent of the jurisdiction of the UT under ss. 15 to 18 of the 2007 Act, remained live issues that were argued because they affected the route to the common ground and thus the basis for the orders made by the UT in the two cases before us.

The Jurisdictional Issues

6. Judicial review and the supervisory jurisdiction of the Court of Session. Broadly stated, these jurisdictions of the High Court and the Court of Session to review the decisions of inferior courts and tribunals and other governmental and public bodies exercising powers based on the laws of the relevant country, are founded in the common law. These jurisdictions are directed to seeing that such courts, tribunals and bodies do not exceed or abuse their powers. In the ordinary course, they will be exercised by the superior court over decisions made by such courts, tribunals and bodies in its jurisdiction (in the sense of its territorial reach). But, that broad principle must be handled circumspectly where the issue concerns the jurisdiction (in the sense of the legal powers) of courts of the constituent parts of the United Kingdom (see Tehrani v Home Secretary

[2007] UKHL 47

[2007] 1 AC 521

at paragraphs 21 and 22).

7. Background facts of this case. These are helpfully set out by Judge Wikeley when initially refusing to give permission to bring the late application for judicial review, in the following terms:

“ 1. The applicant submitted a claim to the Criminal Injuries Compensation Authority (CICA) on 29 September 2006. She explained that she had been subject (sic) to an unprovoked attack on 12 May 2006 by another woman following insults about her English accent from the same woman at a party.

2. On 11 February 2008 CICA rejected the claim on the basis that there was not enough evidence to support the claim (e.g. from the police), citing paragraph 6 and 8 respectively of the Scheme. On 29 April 2008 the applicant, through her then solicitors, applied for a reconsideration of that refusal.

3. On 12May 2008 CICA maintained their decision to reject the claim, essentially repeating the original reasons but expanding on them somewhat.

4. On 20 August 2010 the applicant appealed to the First-tier Tribunal. The usual time limit for appealing in such cases is 90 days.

5. On 13 October 2010 the First-tier Tribunal (Social Entitlement Chamber) (Tribunal Judge Goodier) considered whether to extend time to admit the "out of time" appeal. The First-tier Tribunal's decision was to refuse to extend the time limit and so also to refuse to admit the late appeal.

6. On 11 February 2011 the applicant applied for judicial review to the Administrative Appeals Chamber of the Upper Tribunal, “.

8. To that summary the following should be added:

(a) the alleged attack took place in Scotland,

(b) the Applicant lives in Scotland,

(d) the decision of Judge Goodier was made in England,

(e) on the papers, Judge Wikeley refused to extend time for the application for judicial review, but on the renewed application for permission to apply for judicial review, he identified the jurisdictional issues and directed a “rolled up” hearing of that renewed application, and that it was to be heard with the other case,

(f) Judge Wikeley gave permission in that other case on the basis that the UT had jurisdiction because the alleged injuries were inflicted in England,

(g) when giving those directions Judge Wikeley invited the applicant in this case to provide more information to support her application for an extension of time to bring proceedings for judicial review and to explain the delay in lodging the original appeal , and

(h) the applicant has provided information from a consultant psychiatrist to the effect that between May 2008 and August 2010 and, then again from October 2010 to February 2011, the applicant was suffering from a mental disorder (Bipolar Affective Disorder) and an episodic alcohol misuse problem, and that at present she is recovered in terms of her illness. The applicant’s mother has also provided information concerning her daughter’s health and well being.

9. Background facts of the other case. In that case, the decision of the FtT was to strike out a claim for compensation on the basis that the alleged criminal injury (sexual abuse) was sustained before 1 October 1979 and the victim and the assailant were living together at the time as members of the same family. The strike out was therefore based on the pre-1979 para 7(b) “same roof rule”. The alleged injury took place in England. The applicant in that case claims that he was abused when he was a child living at his foster home by someone about 12 years older than him who was then in the army and who was or had been fostered by the same foster mother. The strike out warning was issued in Scotland and the strike out decision was made in England.

10. Devolved jurisdiction. Criminal injuries compensation falls within the devolved competence of the Scottish Parliament. As yet, the Scottish Parliament has not made any changes in the relevant primary or secondary legislation. However, in the future, the law applicable to a claim for compensation for a criminal injury could be different in England and Wales or Northern Ireland on the one hand, and in Scotland on the other.

11. The most relevant provisions of the 2007 Act. These are set out in an annex to this decision

12. As appears from those sections the 2007 Act creates the UT, as a superior court of record in all parts of the United Kingdom (see ss. 3(2) and (5) of the 2007 Act), and amongst other things gives it:

(a) an appellate jurisdiction throughout the United Kingdom, and

(b) a judicial review jurisdiction and its equivalent in Scotland, by two routes.

13. The first route – ss 15 to 19 of the 2007 Act - England and Wales. The judicial review jurisdiction of the UT is conferred by enabling it to exercise the power set out in s. 15(1) of the 2007 Act (which enables the UT to grant heads of relief that correspond to relief granted by way of judicial review) in:

(a) applications made to the UT because the conditions in ss. 15 and 18 are met. These cases must be within a class specified under s. 18(6) (the Specified Classes),

(b) applications made in the High Court that must be transferred to the UT by the High Court, which must also be within the Specified Classes, and

(c) applications that may be transferred to the UT by the High Court, which can extend beyond the Specified Classes, and when this occurs s. 15(3)(b) of the 2007 Act provides that the UT is authorised to proceed.

14. Whether the application is made to, or transferred to, the UT, the 2007 Act provides that in the exercise of this jurisdiction (and thus of the power conferred by s. 15(1)):

(a) the UT has the function of deciding the applications (see ss. 18(2) and 19(3), (4) and (6)), and so this is one of its functions referred to in s. 3(2) of the 2007 Act, and

(b) that, in doing so, the UT must apply the principles that the High Court would apply on an application for judicial review (see ss. 15(4) and (5), 18(9) and (12) and 19(3)).

15. The power (and so the jurisdiction) of the UT, referred to in the heading to s. 15 as “the UT’s “judicial review” jurisdiction” is not based on the common law but on the statute, albeit that it provides that, in exercising the statutory power to grant the kinds of relief listed in s. 15(1), the UT must apply the principles, based on the common law, that the High Court would apply. That statutory jurisdiction is conferred in respect of, and only in respect of, “ cases arising under the law of England and Wales or under the law of Northern Ireland” and the meaning and application of that condition or trigger is central to the jurisdictional issues raised in this and the other case before us. We shall refer to it as the “s. 15(1) condition”.

16. Decisions of the FtT on claims for compensation for criminal injuries is specified as a class for the purposes of Condition 3 as set out in s. 18(6) of the 2007 Act, by a practice direction of the Lord Chief Justice (reported at

[2009] 1 WLR 327

). It provides that:

“ 1. The following direction takes effect in relation to an application made to the High Court or to the Upper Tribunal on or after 3 November 2008 that seeks relief of the kind mentioned in section 15 (1) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act").

2. The Lord Chief Justice hereby directs that the following classes of case are specified for the purposes of section 18 (6) of the 2007 Act:(a) any decision of the First-tier Tribunal on an appeal made in the exercise of the rights conferred by the Criminal Injuries Compensation Scheme in compliance with section 5 (1) of the Criminal Injuries Compensation Act 1995 (appeals against decisions on reviews); and

(b) any decision of the First-tier Tribunal made under Tribunal Procedure Rules or section 9 of the 2007 Act where there is no right of appeal to the Upper Tribunal and that decision is not an excluded decision within paragraph (b), (c), or (f) of section 11 (5) of the 2007 Act.

3. This direction does not have effect where an application seeks (whether or not alone) a declaration of incompatibility under section 4 of the Human Rights Act 1998. ”

The reference in 2(a) to “reviews” is to a review under the CICS. This not a power of “judicial review”.

17 The second route – ss. 20 and 21 of the 2007 Act - Scotland. Section 20 does not refer to “cases” or to “applications” arising under the law of Scotland but to applications to the Court of Session seeking the exercise of its supervisory jurisdiction. So the trigger to this review jurisdiction of the UT mirrors that in s. 31A of the Senior Courts Act 1981, introduced by s. 19 of the 2007 Act.

18. In our view, it was correctly common ground that, applying Tehrani , the Court of Session could exercise its supervisory jurisdiction in both of the cases before us. It follows that, if applications had been, or were to be, made to it, rather than to the UT, ss. 20 and 21 of the 2007 Act would apply to them.

19. As the condition or trigger to their transfer to the UT, is the making of an application to the Court of Session challenging a decision of the FtT, that statutory review jurisdiction of the UT flows from the existence of the common law supervisory jurisdiction that founds such an application, and so from the law of Scotland in that sense, rather than in the sense of the devolved law providing for the payment of compensation for criminal injuries that governs the decisions made by CICA. The relevance of that applicable law would be whether its application by CICA, as the decision making public body, involved an error of law. And, that is its relevance whenever and however the UT, the High Court or the Court of Session is exercising its review or supervisory jurisdiction.

20. The legislative scheme of ss. 20 and 21 of the 2007 Act, in mandatory and permissive language, mirrors that of ss. 15 to 18 thereof in that it provides that:

(a) defined applications must be transferred to the UT,

(b) other applications may be transferred to the UT,

(c) when they are transferred to it the UT has the function of deciding them, and so this is also one of its functions referred to in s. 3(2) of the 2007 Act, and

(d) in so deciding them, the UT must apply the principles that would be applied by, the Court of Session (see ss. 20(1), and 21(1) to (4)).

21. Differences are that:

(a) by ss. 20 and 21 of the 2007 Act, the UT is not given defined legal powers (jurisdiction) in respect of such applications or cases that correlate to the powers of the Court of Session when exercising its supervisory jurisdiction, rather

(b) it is given the same powers of review as the Court of Session in respect of the application transferred to it by the Court of Session (see s. 21(2)), and

(c) this part of the legislative scheme does not include a provision that enables proceedings for the review of decisions to be started in the UT.

22. It must also be noted that the discretionary provisions relating to a transfer to the UT under ss. 20 and 21 only apply if the “subject matter of the application is not a devolved matter” (see Condition 3; s. 20(4) of the 2007 Act). But, Condition 3 is not one of the conditions mentioned in the mandatory provisions for a transfer to the UT , whereas Condition 2 is (see s. 20(3) of the 2007 Act). And, pursuant to Condition 2, by Scottish SI 2008 No 357 Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008 it has been provided that:

“ 2. Paragraph 3 specifies a class of application for the purposes of section 20 (3) of the Tribunal's, Courts and Enforcement Act 2007.

3. The class of application is an application which challenges a procedural decision or a procedural ruling of the First-tier Tribunal, established under section 3 (1) of the Tribunals, Courts and Enforcement Act 2007. ”

23. Condition 3 provides a link to the law governing the decision which can be challenged under the supervisory jurisdiction of the Court of Session, but does not undermine the point that jurisdiction of the UT under ss. 20 and 21 of the 2007 Act is founded on there being an application under that supervisory jurisdiction to the Court of Session.

24. The question of whether either or both of the cases before us fell within the classes of applications that must be transferred by either or both of the High Court, or the Court of Session, because they challenge, in the case of the High Court, “a decision of the FtT made under Tribunal Procedure Rules” and, in the case of the Court of Session, they challenge “a procedural decision or ruling” was not raised before us.

25 Many decisions of the FtT made under its rules are appealable (see LS v LB Lambeth [2011] AACR 27 ) and so(i) they are expressly excluded from the classes of case specified by the practice direction made by the Lord Chief Justice, and

(ii) an appeal would be an alternative remedy. But for the existence of s. 11(5)(a) of the 2007 Act the alternative remedy of an appeal would be available against (i) the decision of the FtT not to extend time in this case, and (ii) the strike out decision of the FtT in the other case. However, we agree with the approach taken before us that s. 11(5)(a) provides that both of these decisions are excluded decisions of the FtT because it covers decisions of any type made on a CICS appeal. This view is supported by the approach taken in paragraph 2(b) of the practice direction issued by the Lord Chief Justice to excluded decisions within s. 11(5)(b), (c) or (f).

26. It follows that the decision of the FtT in this case, and its strike out decision in the other case, cannot be appealed to the UT but can be challenged by judicial review brought in the UT. In the other case, no application to the Court of Session to exercise its supervisory jurisdiction is likely. That is not the position here and we shall come back to consider the impact of the application that the Applicant intends to make to the Court of Session.

27. Rival contentions, discussion and conclusion. CICA contended that the s. 15(1) condition refers to the law governing the original decision made by the relevant public body, rather than to the law governing any challenge to it by way of an appeal or review, and so in this case to the law governing the application of the CICS. We acknowledge that the following provide some support for that conclusion, namely:

(1) The point that the language of s. 15 of the 2007 Act, unlike that of s. 20 thereof, and of s. 31A of the Senior Courts Act 1981, by referring to (a) cases arising under the law of a constituent part of the UK, and (b) to cases rather than to applications, indicates that s. 15(1) is referring to the underlying applicable law of the case.

(2) The point that as the UT has no common law powers of review under the law of England and Wales, and is given a review jurisdiction by s. 15(1), it would be circular if the introductory words to the section conferring that jurisdiction were referring to the jurisdiction it was conferring.

28. The argument advanced by CICA also fits neatly and simply with the law relating to compensation for criminal injuries because of the attraction of the argument that the place within the United Kingdom where it is asserted the injury was inflicted dictates or identifies the law of the constituent part of the UK that applies to the claim for compensation, and the law of that part of the UK in that sense. This choice or identification of the law applicable to the CICA decision on compensation is the basis of its argument that(i) this case does not arise under the law of England and Wales, but

(ii) the other case does, with the results that (i) the UT does not have jurisdiction to review the decision of the FtT in this case, but (ii) does in the other case.

29. However, for the reasons that follow, we do not accept that contention of CICA and have concluded that the s. 15(1) condition should be construed and applied as referring to cases or applications which seek the review of decisions under the law of England and Wales, as was asserted by the Applicant.

30. In our view:

(1) As matter of the ordinary meaning of the statutory language such applications are within the meaning of the phrase: “cases arising under the law of England and Wales”, and there is no circularity in so construing it. By way of example, if the UT, as a court of record created by statute, was being given a jurisdiction in contract or tort, an opening condition of the empowering section that it related to cases arising under the law of contract or tort, would be a natural use of language. Also, as a matter of language, our construction of the phrase fits with its use in ss. 15(5) of the 2007 Act.

(2) Counsel for CICA was correct to accept that, if his argument was right, it would not provide a black line between the applications for review that could be heard in respectively England and Wales and Scotland. This is because, the reasoning in Tehrani , that founded the conclusion that the Court of Session had jurisdiction, would found the conclusion that, if CICA’s argument is correct, the High Court would have a wider review jurisdiction than the UT which is not cut down, or affected by the 2007 Act, save that parts of it must or may be transferred to the UT if the decisions challenged are “cases that arise under the law of England and Wales” in the sense argued for by CICA.

(3) It follows that, the 2007 Act does not provide for mutually exclusive review jurisdictions in England and Wales on the one hand and Scotland on the other, and the neatness and attractiveness, of such a clear divide, based on CICA’s argument disappears, leaving forum non conveniens points to determine which of the High Court (and the UT) and the Court of Session should determine a review of a decision, when they both have jurisdiction to do so.

(4) CICA’s argument does not mirror the approach of(i) s. 31A of the Senior Courts Act 1981, as introduced by s. 19 of the 2007 Act, and

(ii) ss. 20 and 21 of the 2007 Act which are clearly triggered by applications made under the law of the respective jurisdictions that governs the exercise of their review or supervisory jurisdiction. As to those jurisdictions, the place of the alleged injury would not be determinative and so they could extend to cases in which (i) the injury took place in the geographical area of the other jurisdiction, or (ii) the applicable law for determining whether compensation should be paid for the injury is the law of the other jurisdiction.

(5) So, a consequence of CICA’s argument is that by reference to the applicable law of the underlying decision the s. 15 “judicial review jurisdiction” of the UT is narrower than the review jurisdiction of the High Court. .If that is right, because(i) on a transfer to it from the High Court, the UT exercises its statutory jurisdiction under s. 15(1) on the basis that it is “authorised to proceed” (see ss. 15(2)(b) of the 2007 Act), and

(ii) a transferred application is treated for all purposes as if it had been made in the UT, which then has the function of deciding it (see s. 19(3) of the 2007 Act), CICA’s argument means that (or it is at least arguable that it means that) a limit is placed on the applications that may transferred from the High Court to the UT. And, it is unlikely that, when creating the UT as a court of record throughout the United Kingdom and giving it a review jurisdiction, Parliament would have intended to introduce any such limitation on the applications that the High Court could transfer to the UT.

(6) The neatness of CICA’s solution is also considerably diminished when it is remembered that the provisions of the statutory scheme are not limited(i) to cases concerning the CICS, or

(ii) to challenges to decisions based on a statutory regime, and thus applicable law, that is a devolved matter, or

(iii) to challenges based on the application of the law applicable to the underlying decision of the relevant public authority, and they extend to decisions of the FtT which can and cannot be started in the UT and which may and must be transferred to it by the High Court and the Court of Session.

(7) In the wider application of s. 15(1) of the 2007 Act, to cases where the underlying decision is based on the application of(i) UK wide schemes or laws,

(ii) devolved matters where the applicable law is, for the time being the same throughout the UK (for example the CICS), and

(iii) the procedure of the FtT, a simple divide between the law applicable to the underlying decision of England and Wales on the one hand, and Scotland on the other, does not exist or is not obvious. Examples of such cases include: (a) challenges to decisions of the FtT based on its Rules and/or s. 9 of the 2007 Act in respect of which Condition 3 is satisfied, which must be transferred by the High Court, and challenges to a procedural ruling of the FtT, which must also be transferred by the Court of Session to the UT (see paragraphs 25 and 26 above), albeit that many decisions on the Rules and procedural issues are appealable, (b) challenges to decisions excluded from appeal by s.s. 11(5)(b) and (c), and thus appeals to the FtT against decisions under the Data Protection Act 1998 and the Freedom of Information Act 2000, (c) applications that call into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 wholly or partly on the basis that they are not significantly different from material that has previously been considered (whether or not it calls into question any other decision). These (i) can be brought in the UT pursuant to s. 15(1), because of a Direction made for the purposes of s. 18(6) of the 2007 Act, which took effect on 17 October 2011, and (ii) must be transferred to the UT by the High Court and the Court of Session pursuant to amendments to ss. 19 and 20 of the 2007 Act made by s. 53 of the Borders, Citizenship and Immigration Act 2009, and (d) discretionary transfers by the High Court or the Court of Session of applications relating to other types of case (e.g. educational needs, mental health, social security benefits and tax).

(8) The inclusion, and the approach to the inclusion, of the challenges referred to in paragraph (7)(a) to (c) above provides strong support for the view that the s. 15(1) condition should be construed as referring to cases or applications seeking the review of decisions under the law of England and Wales, because(i) a challenge based on procedure focuses on the tribunal and the law of review, rather than the law applicable to the decision appealed to the FtT,

(ii) the s. 15(1) condition does not mirror the language of s. 11(5)(a),(b) and (c) which contain definitions of excluded decisions of the FtT that cannot be appealed to the UT and which refer expressly to the law governing the decision appealed to the FtT and

(iii) the language and approach of the primary legislation and direction that confer the additional jurisdiction referred to in (7)(c), and the nature of that jurisdiction, indicate that this was the understanding upon which they were based.

(9) The inclusion within Condition 4 (see s. 18(8) of the 2007 Act) of references to a judge of the Court of Session and to the Lord President is best explained on the basis that Parliament had in mind that an application to the UT seeking relief under s. 15(1) might relate to a case where the law applicable to the underlying decision was, or included, the law of Scotland (e.g. a devolved matter such as the CICS or property rights). Indeed, another explanation was not offered and has not occurred to us and, in respect of a public law challenge based on error of law, an approach that foreign law is a question of fact does not seem apposite.

(10) Looked at as a whole, the scheme of the relevant provisions of the 2007 Act(i) is to create the UT as a court of record in all parts of the United Kingdom, to give it a judicial review jurisdiction, and to allocate the review or supervisory jurisdictions in respectively England and Wales and Scotland as between the courts and tribunals of those jurisdictions (in the geographical sense), and

(ii) indicates that the driving feature or starting points for the different allocations and regimes is the existence of a case in which the Applicant seeks relief pursuant to the powers of review and supervision in the two jurisdictions. On this point, it seems to us that the ordering of ss. 15 to 19 is not significant, albeit that, if s. 19 had come first, it might have made it clearer that the UT was being given the jurisdiction and function of deciding cases seeking review under the law of England and Wales in (i) Specified Classes of Case (see ss. 18(6) and 19(6)), and (ii) in such other such cases brought in the High Court, and so arising under the law of England and Wales, as the High Court concluded should be transferred to the UT because this would be just and convenient.

(11) Accordingly, we reject CICA’s arguments that, if our conclusion is right, the s. 15(1) condition would be rendered meaningless and there would have been no need for ss 20 and 21 of the 2007 Act. Rather, sections 15 to 21 of the 2007 Act recognise and proceed on the basis of the existence of, and make provisions relating to, the different review or supervisory jurisdictions in England and Wales (or Northern Ireland) and in Scotland.

The proposed application to the Court of Session

31. The applicant wants to make an application to the Court of Session under its supervisory jurisdiction to set aside the decision of the FtT not to extend time for bringing her appeal and so admit it for hearing. It was understandably pointed out that before she does so, she wishes to investigate what funding and representation is available to her. She wants to take this course because her case is that the natural or convenient forum for this challenge is Scotland, and the approach taken by the Court of Session to the time in which such proceedings for review must be brought is different to that taken by the High Court (and thus the Upper Tribunal).

32. We were invited to bring an end to the proceedings before us on forum non conveniens grounds even though as yet no proceedings have been issued in the Court of Session. We declined to do so because we were of the view that the better course was to adjourn the present proceedings to allow the applicant a reasonable time to investigate funding and representation in respect of, and to start, her intended proceedings in the Court of Session. If such proceedings are started in a reasonable time, these proceedings will then be brought to an end by a stay, withdrawal or dismissal (by consent), but if they are not then, subject to further directions, they will be set down for hearing before one of us for disposal or further directions.

33. In writing this judgment it has occurred to us that it may be arguable that the Scottish SI (cited in paragraph 22 hereof) has the result that the Court of Session must transfer to the UT the applicant’s intended application to it because(i) conditions 1, 2 and 4 (as defined in s. 20 of the 2007 Act) would be satisfied, and

(ii) condition 3 does not apply to mandatory transfers. This point was not raised in argument and, in our view, it is a point for the Court of Session rather than us. This is because it only arises if and when an application is made to the Court of Session, and any transfer must be by the Court of Session (with or without dealing with time points)..

34. If there was such a mandatory transfer, the problem that would then arise is that the UT would have a judicial review jurisdiction by two routes which lead to it exercising those jurisdictions (and functions) on different principles. It would therefore have to choose which set of principles to apply. In this case, the forum non conveniens reasons that found the conclusion that the applicant should be able to pursue her challenge in the Court of Session also found the conclusion that, if the UT has the function (jurisdiction) of deciding the applicant’s challenge(i) in the present proceedings (and thus by the ss. 15 to 18 route), and

(ii) on a transfer from the Court of Session (the ss. 20 and 21 route), it should do so by the latter route and so by applying the principles that the Court of Session would apply.

The FtT Guidance Notes

35. Our conclusion on the jurisdictional issues means that the guidance notes on the forms sent out in this and other CICS cases by the FtT concerning the availability of judicial review are incorrect and so need to be altered. This may also apply to guidance notes in other types of case. The manner in which the guidance notes should be altered is outside the proper subject matter of this decision.

Mr Justice Charles

Lord Brailsford

Judge Levenson

Date: 31st July 2012

ANNEX TO JUDGMENT

3. The First-tier Tribunal and the Upper Tribunal E+W+S+N.I.

This section has no associated Explanatory Notes

(1) There is to be a tribunal, known as the First-tier Tribunal, for the purpose of exercising the functions conferred on it under or by virtue of this Act or any other Act.

(2) There is to be a tribunal, known as the Upper Tribunal, for the purpose of exercising the functions conferred on it under or by virtue of this Act or any other Act.

(3)

(4)

(5) The Upper Tribunal is to be a superior court of record.

11 Right to appeal to Upper Tribunal

(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

(2)

(3).

(4)

(5) For the purposes of subsection (1), an “excluded decision” is—

(a) any decision of the First-tier Tribunal on an appeal made in exercise of a right conferred by the Criminal Injuries Compensation Scheme in compliance with section 5(1)(a) of the Criminal Injuries Compensation Act 1995 (c. 53) (appeals against decisions on reviews),

(b) any decision of the First-tier Tribunal on an appeal under section 28(4) or (6) of the Data Protection Act 1998 (c. 29) (appeals against national security certificate),

(c) any decision of the First-tier Tribunal on an appeal under section 60(1) or (4) of the Freedom of Information Act 2000 (c. 36) (appeals against national security certificate),

(d) a decision of the First-tier Tribunal under section 9— (i) to review, or not to review, an earlier decision of the tribunal,

(ii) to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal,

(iii) to set aside an earlier decision of the tribunal, or

(iv) to refer, or not to refer, a matter to the Upper Tribunal,

(e) a decision of the First-tier Tribunal that is set aside under section 9 (including a decision set aside after proceedings on an appeal under this section have been begun), or (f) any decision of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor.

(6) A description may be specified under subsection (5)(f) only if—(a) in the case of a decision of that description, there is a right to appeal to a court, the Upper Tribunal or any other tribunal from the decision and that right is, or includes, something other than a right (however expressed) to appeal on any point of law arising from the decision, or

(b) decisions of that description are made in carrying out a function transferred under section 30 and prior to the transfer of the function under section 30(1) there was no right to appeal from decisions of that description.

(7)

(8)

Judicial review E+W+S+N.I.

15. Upper Tribunal's “judicial review” jurisdiction E+W+S+N.I.

(1) The Upper Tribunal has power, in cases arising under the law of England and Wales or under the law of Northern Ireland, to grant the following kinds of relief—

(a) a mandatory order;

(b) a prohibiting order;

(d) a declaration;

(e) an injunction.

(2) The power under subsection (1) may be exercised by the Upper Tribunal if—

(a) certain conditions are met (see section 18), or

(b) the tribunal is authorised to proceed even though not all of those conditions are met (see section 19(3) and (4)).

(3) Relief under subsection (1) granted by the Upper Tribunal—

(a) has the same effect as the corresponding relief granted by the High Court on an application for judicial review, and

(b) is enforceable as if it were relief granted by the High Court on an application for judicial review.

(4) In deciding whether to grant relief under subsection (1)(a), (b) or (c), the Upper Tribunal must apply the principles that the High Court would apply in deciding whether to grant that relief on an application for judicial review.

(5) In deciding whether to grant relief under subsection (1)(d) or (e), the Upper Tribunal must—(a) in cases arising under the law of England and Wales apply the principles that the High Court would apply in deciding whether to grant that relief under section 31(2) of the Supreme Court Act 1981 (c. 54) on an application for judicial review, and

(b) in cases arising under the law of Northern Ireland apply the principles that the High Court would apply in deciding whether to grant that relief on an application for judicial review.

(6) For the purposes of the application of subsection (3)(a) in relation to cases arising under the law of Northern Ireland —

16 Application for relief under section 15(1) E+W+S+N.I.

(1) This section applies in relation to an application to the Upper Tribunal for relief under section 15(1).

(2) The application may be made only if permission (or, in a case arising under the law of Northern Ireland, leave) to make it has been obtained from the tribunal.

(3) The tribunal may not grant permission (or leave) to make the application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

(4) Subsection (5) applies where the tribunal considers—

(a) that there has been undue delay in making the application, and

(b) that granting the relief sought on the application would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(5) The tribunal may—

(a) refuse to grant permission (or leave) for the making of the application;

(b) refuse to grant any relief sought on the application.

(6) The tribunal may award to the applicant damages, restitution or the recovery of a sum due if—

(a) the application includes a claim for such an award arising from any matter to which the application relates, and

(b) the tribunal is satisfied that such an award would have been made by the High Court if the claim had been made in an action begun in the High Court by the applicant at the time of making the application.

(7) An award under subsection (6) may be enforced as if it were an award of the High Court.

(8) Where—

(a) the tribunal refuses to grant permission (or leave) to apply for relief under section 15(1),

(b) the applicant appeals against that refusal, and

the Court of Appeal may go on to decide the application for relief under section 15(1).

(9) Subsections (4) and (5) do not prevent Tribunal Procedure Rules from limiting the time within which applications may be made.

17 Quashing orders under section 15(1): supplementary provision E+W+S+N.I.

(1)

18 Limits of jurisdiction under section 15(1) E+W+S+N.I.

(1) This section applies where an application made to the Upper Tribunal seeks (whether or not alone)—

(a) relief under section 15(1), or

(b) permission (or, in a case arising under the law of Northern Ireland, leave) to apply for relief under section 15(1).

(2) If Conditions 1 to 4 are met, the tribunal has the function of deciding the application.

(3) If the tribunal does not have the function of deciding the application, it must by order transfer the application to the High Court.

(4) Condition 1 is that the application does not seek anything other than—

(a) relief under section 15(1);

(b) permission (or, in a case arising under the law of Northern Ireland, leave) to apply for relief under section 15(1);

(d) interest;

(e) costs.

(5) Condition 2 is that the application does not call into question anything done by the Crown Court.

(6) Condition 3 is that the application falls within a class specified for the purposes of this subsection in a direction given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 (c. 4).

(7) The power to give directions under subsection (6) includes—

(a) power to vary or revoke directions made in exercise of the power, and

(b) power to make different provision for different purposes.

(8) Condition 4 is that the judge presiding at the hearing of the application is either—

(a) a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, or a judge of the Court of Session, or

(b) such other persons as may be agreed from time to time between the Lord Chief Justice, the Lord President, or the Lord Chief Justice of Northern Ireland, as the case may be, and the Senior President of Tribunals.

(9) Where the application is transferred to the High Court under subsection (3)—

(a) the application is to be treated for all purposes as if it— (i) had been made to the High Court, and

(ii) sought things corresponding to those sought from the tribunal, and

(b) any steps taken, permission (or leave) given or orders made by the tribunal in relation to the application are to be treated as taken, given or made by the High Court.

(10) Rules of court may make provision for the purpose of supplementing subsection (9).

(11) The provision that may be made by Tribunal Procedure Rules about amendment of an application for relief under section 15(1) includes, in particular, provision about amendments that would cause the application to become transferrable under subsection (3).

(12) For the purposes of subsection (9)(a)(ii), in relation to an application transferred to the High Court in Northern Ireland— (a)

19 Transfer of judicial review applications from High Court E+W+S+N.I.

(1) In the Supreme Court Act 1981 (c. 54), after section 31 insert—

“ 31ATransfer of judicial review applications to Upper Tribunal

(1) This section applies where an application is made to the High Court—

(a) for judicial review, or

(b) for permission to apply for judicial review.

(2) If Conditions 1, 2, 3 and 4 are met, the High Court must by order transfer the application to the Upper Tribunal.

(3) If Conditions 1, 2 and 4 are met, but Condition 3 is not, the High Court may by order transfer the application to the Upper Tribunal if it appears to the High Court to be just and convenient to do so.

(4) Condition 1 is that the application does not seek anything other than—

(a) relief under section 31(1)(a) and (b);

(b) permission to apply for relief under section 31(1)(a) and (b);

(d) interest;

(e) costs.

(5) Condition 2 is that the application does not call into question anything done by the Crown Court.

(6) Condition 3 is that the application falls within a class specified under section 18(6) of the Tribunals, Courts and Enforcement Act 2007.

(7) Condition 4 is that the application does not call into question any decision made under—

(a) the Immigration Acts,

(b) the British Nationality Act 1981 (c. 61),

(d) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas citizenship. ”

(2) In the Judicature (Northern Ireland) Act 1978 (c. 23), after section 25 insert—

“

(3) Where an application is transferred to the Upper Tribunal under 31A of the Supreme Court Act 1981 (c. 54) or section 25A of the Judicature (Northern Ireland) Act 1978 (transfer from the High Court of judicial review applications)—

(a) the application is to be treated for all purposes as if it— (i) had been made to the tribunal, and

(ii) sought things corresponding to those sought from the High Court,

(b) the tribunal has the function of deciding the application, even if it does not fall within a class specified under section 18(6), and (c) any steps taken, permission given, leave given or orders made by the High Court in relation to the application are to be treated as taken, given or made by the tribunal.

(4) Where—

(a) an application for permission is transferred to the Upper Tribunal under section 31A of the Supreme Court Act 1981 (c. 54) and the tribunal grants permission, or

(b) an application for leave is transferred to the Upper Tribunal under section 25A of the Judicature (Northern Ireland) Act 1978 (c. 23) and the tribunal grants leave,

the tribunal has the function of deciding any subsequent application brought under the permission or leave, even if the subsequent application does not fall within a class specified under section 18(6).

(5) Tribunal Procedure Rules may make further provision for the purposes of supplementing subsections (3) and (4).

(6) For the purposes of subsection (3)(a)(ii), in relation to an application transferred to the Upper Tribunal under section 25A of the Judicature (Northern Ireland) Act 1978—

20 Transfer of judicial review applications from the Court of Session E+W+S+N.I.

(1) Where an application is made to the supervisory jurisdiction of the Court of Session, the Court—

(a) must, if Conditions 1, 2 and 4 are met, and

(b) may, if Conditions 1, 3 and 4 are met, but Condition 2 is not,

by order transfer the application to the Upper Tribunal.

(2) Condition 1 is that the application does not seek anything other than an exercise of the supervisory jurisdiction of the Court of Session.

(3) Condition 2 is that the application falls within a class specified for the purposes of this subsection by act of sederunt made with the consent of the Lord Chancellor.

(4) Condition 3 is that the subject matter of the application is not a devolved Scottish matter.

(5) Condition 4 is that the application does not call into question any decision made under—

(a) the Immigration Acts,

(b) the British Nationality Act 1981 (c. 61),

(6) There may not be specified under subsection (3) any class of application which includes an application the subject matter of which is a devolved Scottish matter.

(7) For the purposes of this section, the subject matter of an application is a devolved Scottish matter if it—

(a) concerns the exercise of functions in or as regards Scotland, and

(b) does not relate to a reserved matter within the meaning of the Scotland Act 1998 (c. 46).

(8) I n subsection (2), the reference to the exercise of the supervisory jurisdiction of the Court of Session includes a reference to the making of any order in connection with or in consequence of the exercise of that jurisdiction.

21 Upper Tribunal's “judicial review” jurisdiction: Scotland E+W+S+N.I.

(1) The Upper Tribunal has the function of deciding applications transferred to it from the Court of Session under section 20(1).

(2) The powers of review of the Upper Tribunal in relation to such applications are the same as the powers of review of the Court of Session in an application to the supervisory jurisdiction of that Court.

(3) In deciding an application by virtue of subsection (1), the Upper Tribunal must apply principles that the Court of Session would apply in deciding an application to the supervisory jurisdiction of that Court.

(4) An order of the Upper Tribunal by virtue of subsection (1)—

(a) has the same effect as the corresponding order granted by the Court of Session on an application to the supervisory jurisdiction of that Court, and

(b) is enforceable as if it were an order so granted by that Court.

(5) Where an application is transferred to the Upper Tribunal by virtue of section 20(1), any steps taken or orders made by the Court of Session in relation to the application (other than the order to transfer the application under section 20(1)) are to be treated as taken or made by the tribunal.

(6) Tribunal Procedure Rules may make further provision for the purposes of supplementing subsection (5).

Cited in 1 later judgment

R(Criminal Injuries Compensation Authority) v First-tier Tribunal (CIC): [2018] UKUT 439 (AAC);[2019] AACR 18 2018